The Top 10 Child Custody Questions In Texas
John Wilson • Dec 07, 2019
10 Things You Must Know About Texas Child Custody
Texas child custody can be extremely stressful and emotional for the child, the parent, and the guardian. Below are frequently asked questions that Texas family's have when seeking help from a board certified divorce lawyer and child custody lawyer. Our Dallas board certified divorce lawyers and child custody attorneys are ready to assist you in child custody litigation and can aggressively represent your legal rights.
How Do I Get A Child Custody Order?
A new child custody case can be established, under Texas Family Code 152.201, if i) at the date of commencement of the proceeding, the state is the “home state” of the child; and ii) you, and your child, has lived in the state for approximately six (6) months at the time you are filing for custody of your child. This means that jurisdiction has either been declined by a court of another state or it was never in another court's power to begin with. If you are moving to Texas, you can learn about the Texas Uniform Child Custody Jurisdiction Act and the requirement to establish the "home state" of the child. But if you've lived in Texas for the past six (6) months, and in a particular Texas county for the proceeding ninety (90) days, that it is that Texas county in which you should file your divorce and your child custody suit. If you need emergency custody, you can always ask any Texas Family Court to assume control of your child custody case on a temporary basis.
How Do I Modify A Child Custody Order?
Under Texas Family Code Section 152.202, the Court that originally created the child custody order has the exclusive continuing jurisdiction over any modification of that order. In fact, in Texas, if any other court makes a non-emergency ruling in a child custody matter and that court is not the court with exclusive continuing jurisdiction, then that court's order is per se void as that court had no legal authority to make a child custody order. However, a court of continuing justification will lose the power to adjudicate a child custody matter in the event the child has lived ninety (90) days or more in another Texas county and a timely request to transfer to that new Texas county has been filed by a parent or guardian. Until a child turns eighteen (18) years of age, or is emancipated, custody orders are never terminated and can be modified.
What Type of Custody Can I Get in Texas?
Individuals may be appointed as conservators, and those conservators are granted rights of possession and access to a child under Chapter 153 of the Texas Family Code. Conservatorship is synonymous with custody in Texas. There are two types of conservatorships: i) Managing Conservator, and ii) Possessory Conservator. Each managing or possessory conservator can have rights and duties as either sole managing conservator or joint managing conservator. A sole managing conservator generally has the right to make most decisions without regard to the other parent's opinions, whereas a joint managing conservator must generally confer with the other parent before making decisions. A managing conservator typically has the right to determine the primary residence of the child, and the possessory conservator generally has visitation.
How Do I Get Sole Custody Of My Child In Texas?
It is possible to get sole custody of your child if a court decides that you being a sole managing conservator would be “in the best interest of your child.” The court, along with your testimony and the testimony of any witnesses, balances the needs of the family and the child when making its final decision in determining child custody; however, the child is the primary focus of the court and not the parent. Being the primary caregiver for your child is not enough to be appointed sole managing conservator. Generally, to get sole custody, there must be some overarching need such as a child's disability or such significant parental discord (e.g. family violence) requiring a finding that one parent should have sole control over the decisions for a child. Sole custody may also be granted in situations where there has been family violence, or when the other parent must be away for extended periods of time and is otherwise unreachable.
How Does The Court Decide Who Should Be The Primary Conservator?
When the court decides at a temporary or final hearing which parent gets the exclusive right to designate the primary residence of the child, they look at a number of standards to affirm their reasoning. Texas law provides that both parents be considered equally without regard to parental gender, but the court takes into consideration who the primary caretaker of the child has been before finalizing its decision:
- Who took care of the basic needs of the child (e.g. food, clothing, shelter)?;
- Who took the child to daycare, school and doctors appointments?;
- Who attended schools meetings for the child?;
- Who participated in extracurricular activities with the child?; and
- Who helped with the child's homework?
At What Age Can My Child Decide Where He/She Wants To Live?
A child in Texas cannot decide where he or she wants to live; however, at the age of 12, the child can be interviewed by a judge at the request of either party by filing a "Motion to Confer With Child." Most courts do not like putting children in the middle or interviewing children, but rather would prefer a therapist or psychologist opine as to the mental health and well being of the child. It is true that in Texas children were able to file sworn affidavits designating where they wanted to live; however, that law was repealed.
What Rights To A Child Can A Parent Get In Texas?
Parents who are deemed joint managing conservators under the Texas Family Code Section 153.074, will be granted the following right unless those rights are otherwise limited by the court or agreed to by the parties. These rights can either be given jointly, exclusively or independently, depending on the Court's ruling. These rights can also be removed from a parent if such rights are not in the best interest of a child:
- The right to consent to medical, dental, and surgical treatment involving invasive procedures;
- The right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
- The right to consent to marriage and to enlistment in the armed forces of the United States;
- The right to make decisions concerning the child’s education;
- The right to the services and earnings of the child; and
- Except when a guardian of the child’s estate or a guardian or attorney ad litem has been appointed for the child, the right to act as agent of the child in relation to the child’s estate if the child’s action is required by the state, the United States, or a foreign government.
In addition to the parental rights above, a parent managing conservator or a sole managing conservator will be given the following additional rights in raising a child:
- The right to designate the primary residence of the child;
- The right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child;
Do I Have To Pay Child Support In Texas?
Child support is based on net income from all sources, and the court typically is obligated to award one parent child support unless the parents can agree otherwise and that agreement is in the best interest of the child. Importantly, your employer is required by law to withhold child support from your wages, and you are required to notify your employer of your child support obligation. Child support obligation will slightly decrease if you have a legal obligation to support other children which are not presently before the court. For a review of child support obligations in Texas see our Texas Basic Guideline Child Support web-page.
Does Family Violence Matter In Child Custody Cases?
The court determines the conservatorship of the child in every child custody case. Although the presumption in Texas is that parents should be named as joint managing conservators, the court always seeks out the “best interests of the child”. Below is a list of standards that the court considers before making a final decision regarding child custody in Texas:
- The child’s stated desires;
- The present and future emotional and physical needs of the child;
- Present and future danger to the child;
- The financial and parental abilities of both parents;
- The stability of the home environment;
- The plans each parent has for the child; and
- Whether there is evidence of domestic violence,
The court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child. Section 153.004 of the Texas Family Code provides for the following in domestic violence cases: "Sec. 153.004. HISTORY OF DOMESTIC VIOLENCE OR SEXUAL ABUSE. (a) In determining whether to appoint a party as a sole or joint managing conservator, the court shall consider evidence of the intentional use of abusive physical force, or evidence of sexual abuse, by a party directed against the party's spouse, a parent of the child, or any person younger than 18 years of age committed within a two-year period preceding the filing of the suit or during the pendency of the suit."
Does Being Remarried Increase My Chances of Gaining Custody of My Child?
The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child; so, remarriage alone is not enough to change the court's focus. Importantly, Section 153.003 of Texas Family Code provides that the court shall consider the qualifications of the parties without regard to their marital status or to the sex of the party or the child in determining the following conservatorships:
- Which party to appoint as sole managing conservator;
- Whether to appoint a party as joint managing conservator; and
- The terms and conditions of conservatorship and possession of and access to the child.
However, from a practical perspective, being in a stable two-person family environment may very well be in the best interest of the child.
Interview of a Child in Chambers by a Texas Court Divorces can be messy; even more so when children are involved. One pivotal question that is often asked is who will receive primary custody. The prospect of children speaking to a judge during a divorce case to help determine custody can be a controversial topic. On one hand, it aims to understand and prioritize the child's preferences and best interests. On the other hand, exposing children to legal proceedings can be emotionally taxing and stressful . When Can the Judge Talk to Children? During a nonjury trial or hearing, the court is required to privately interview any child 12 years or older, while interviewing a child under 12 is at the judge's discretion. This private interview helps convey the child's wishes regarding who should have primary custody. The judge can also conduct the interview independently or on the request of a party, amicus attorney, or attorney ad litem. While speaking to the child can help determine issues of possession, access, and parent-child relationships, it does not restrict the court’s authority to decide what’s best for them. However, in cases where a jury trial is underway, the judge is prohibited from privately interviewing the child on matters subject to a jury verdict such as which parent is granted conservatorship/primary custody. During the conversations, attorneys representing the parents, the amicus attorney, the guardian ad litem, or the child's attorney ad litem may be present. For children aged 12 and older, the court is required to record these interviews to ensure a thorough and accurate record is available as part of the overall case documentation. Inside the Judge's Playbook: What Gets Asked? The judge may ask open-ended questions about living arrangements, the child's relationship with each parent, and other aspects relevant to their well-being. Additionally, an interviewer’s nonverbal communication may not contribute to the making of a particular statement. James v. Texas DHS, 836 S.W.2d 236, 239-241, (Tex.App.—Texarkana 1992, no writ.). However, the child's testimony is just one piece of the puzzle, weighed alongside other factors such as parental behavior, home stability, and each parent's willingness to cultivate the child's relationship with the other parent. Importantly, if the judge during the interview has reasonable cause to believe that a child’s physical or mental health or welfare has been adversely affected by abuse or neglect by any person , the the judge is obligated to shall immediately make a report. Tex. Fam. Code §261.101(a).
What is a Franchise Agreement? Businesses form franchise agreements when they want to share their business ideas and ventures with other entrepreneurs looking to be independent business operators themselves. The franchise agreement is a legal contract that establishes a franchisor-franchisee relationship to expand the franchisor's entrepreneurial ideas and values. The franchisor grants the franchisee the legal right to set up and operate a franchised business consistent with the terms of the franchise agreement. Under this agreement, the franchisee gains the license to use the franchisor’s trademarks, trade dress, business systems, operational manuals, and supply sources for offering and selling the franchisor's specified products and/or services. The franchise agreement is required to be legally included as an exhibit in the franchisor’s Franchise Disclosure Document, which must be presented to potential franchisees before any franchise offerings or sales are made. The federal trade commission publishes A Consumer's Guide to Buying a Franchise which is helpful for perspective purchasers' of franchises.
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